Digital Rights, Press Freedom, Defamation / Reputation
The Case of RTVBN d.o.o.
Bosnia and Herzegovina
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The Constitutional Court of Colombia rejected a tutela in which the plaintiff was seeking the deletion of an offensive Facebook post against her. The plaintiff considered that a Facebook post in which she was accused of bullying a minor sullied her good name and honor. The Court held that, although the post and related meme were taken out of context, thus misrepresenting the purpose of the plaintiff’s original post, it had no capacity of affecting her rights to a degree that required constitutional protection. Further, Uribe could resort to ordinary procedures provided by the law against harassment in workspaces.
Andrea Lilian Uribe Peña filed a Tutela (an application for the protection of constitutional rights) against the Ministry of Labour and Carlos Alberto Merchán Espíndola seeking defendant Merchán to delete a Facebook post, rectify accusations made against her in that social media, and refrain from making similar declarations in the future, as well as seeking the Ministry to accelerate queries for alleged office harassment by Merchán against her.
Both Merchán and Uribe worked as labour inspectors at the Ministry and, according to Uribe, she had been subject to defamatory comments online by Merchán. She had filed an internal complaint against Merchán at the Ministry and also filed criminal complaints for defamation and gender violence. Following an internal meeting with a high-ranking officer at the Ministry aiming to solve the dispute, Merchán published a Facebook post in which he accused Uribe of mocking and bullying his daughter. The post included a picture of the child and a screenshot of a meme with the picture of a monkey that Uribe had published in a comment to another Facebook publication of a woman who had a paternity claim against Merchán. According to Uribe Peña the publication triggered insults and disparaging comments on Facebook, causing her anxiety and panic. Uribe Peña filed the tutela requesting the aforementioned remedies grounded on an alleged violation to her honor, enshrined in article 21 of the Constitution, and good name, enshrined in article 15 of the Constitution for being accused of being a ‘bully of minors’”.
The Court of first instance declared that there was no cause of action because Merchán had deleted the Facebook post. Nevertheless, the Court considered that Merchán made baseless accusations against the plaintiff and ordered him to publish an apology on Facebook. Both the defendant Merchán and the plaintiff appealed the decision. Merchán argued that the Court did not properly examine the facts on the ground that that the Court afforded no relevance to the alleged fact that the plaintiff had associated his child with a monkey. Uribe argued that the Court had given total credibility to the allegations of the defendant, which she considered as a justification of the injury caused by the publication. The second instance Court revoked the first instance decision holding that the plaintiff had to submit a letter requesting a rectification as a procedural requisite, which, pursuant to article 42 of Decree 2591 of 1991, applies on tutela cases against media outlets.
The Decree 2591/91, which regulates tutela, establishes that once the regular proceeding is concluded every tutela file should be send to the Constitutional Court, which may decide to select it for a special review or not. This case was chosen by the Constitutional Court for its review.
The main two issues before the court were to: first, determine if the Ministry of Labor had violated the Plaintiff Uribe’s rights for not adopting preventive or corrective measures for protecting the plaintiff before defendant Merchán and; second, determine if the publication made by defendant Merchán, alleging Uribe was a “bully of minors,” had violated the plaintiffs rights.
The Ministry argued that the tutela, which functions as a subsidiary procedure, was not applicable against them, since the plaintiff could resort to other ordinary procedures. It also referred to developments in the query for the complaint filed by Uribe.
Merchán argued that he never referred to Uribe as a bully of minors and that his post was a legitimate and respectful claim, grounded in his outrage for a mocking meme published by Uribe comparing his daughter to a monkey. He also claimed that Uribe had repeatedly made social media posts and memes mocking his child. Furthermore, Merchán argued that the plaintiff was communicating with a friend who had filed a paternity case against him. Finally, he argued that Uribe had to first make a formal request for rectification before filing the tutela.
The Court considered that there was cause of action for the tutela against Merchán and that the requirement of requesting a rectification was not applicable in this case because he was not acting as a journalist and the publication was not of a journalistic nature. With regards to the Ministry, the Court considered that there was no cause of action because Uribe could resort to ordinary procedures provided by the law against harassment in workspaces.
The Constitutional Court ruled against Uribe on the ground that Merchán had deleted the Facebook post, and hence there was no risk requiring the constitutional protection by the tutela. Furthermore, the Court considered that the impugned post by Merchán was the result of his feelings of anger and outrage against Uribe for mocking his child. According to the Court the publication of the screenshot of the Meme by Merchán was taken out of context and thus misrepresented the purpose of the plaintiff’s original post, placing her in a position of being accused of the reprehensible conduct of bullying a child [Para. 6.2.8]. Nevertheless, the Court said that the accusations made by defendant Merchán against Uribe had no capacity of affecting her rights to a degree that required constitutional protection [Para. 6.2.9].
Furthermore, the Court highlighted that the publication “was done in the context of a horizontal relationship between public servants for issues outside of their functions and in which none of them enjoys notoriety or public relevance”. In addition, the publication had a small reach: it was deleted by Merchán, who only had sixty three followers of his personal account. The Court also noted that the publication only had fourteen likes and wasn’t shared by any third parties [Para. 6.2.12].
In conclusion, the Court considered that the judiciary has no place intervening in cases involving publications that may be shocking, offensive, annoying or that even distort reality but have no significant capacity to affect the “moral assets” of the plaintiff. The Court concluded that judges cannot intervene in social media disputes regarding expressions of a trivial nature that only represent an expressive excess natural to human relationships, even if they cause discomfort to the plaintiff [Para. 6.2.13].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression as it widens the protection of offensive content when it has a trivial nature and is connected to outrage on personal issues. Furthermore, the decision expands expression as it protected this right against honor and good name in a case where the offended party was not notorious, regardless of being a public server, and her impugned actions were not related to actions directly related to her official capacity. It also expands expression as it withdraws the action of the court from social media cases where there is no actual relevance or impact.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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